David Simpson - Partner, Coles Miller

I Signed A Medical Consent Form: Can I Still Claim For Negligence?29th Mar 2017

by David Simpson on 29th Mar 2017

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Question: I had to sign a medical consent form before my operation. It warned of possible risks but I still signed. Then something went wrong with my operation. Can I still claim compensation?David Simpson, a Partner and head of the Clinical Negligence Department at Coles Miller Solicitors, Poole

Answer: Yes you can. The consent form you signed does not absolve the hospital of blame for all errors. It is not a ‘get out of jail free’ card.

Did You Give INFORMED Consent?

‘Informed’ is the key word here. Were you properly told of all the risks? Were you told the risk was a “chance in a million”…when in reality the danger was much higher?

Were you told of ALL the potential risks? Did the healthcare staff fail to mention any alternative treatments that were less risky?

Did you have enough information to make a proper informed decision? Was it detailed enough?
If not, you could claim compensation for medical negligence (No Win No Fee).

Consent: Clinicians Now Face A Different Test

The benchmark for medical negligence is the Bolam test (1957). In brief summary, would a responsible body of medical practitioners skilled in that particular field have done the same thing?

There is also the Bolitho qualification (1998) to that test: would the treatment you received stand up to logical analysis?

And in March 2015 came the Montgomery case: what would a reasonable person consider significant to enable them to make an informed choice about the treatment they are prepared to undergo?

The Montgomery test means doctors have to take much greater care when outlining the risks to you.

They have to look at your individual concerns as a patient. One size does not fit all.

Here’s an example: a patient needing eye surgery may be much more risk averse than normal if they’ve already lost their sight in their other eye. They don’t want to risk complete blindness – so less risky and less invasive treatment alternatives would be much more important to them. 

Doctors must take this into account under the Montgomery test.

And it’s not just from March 2015 onwards – under the law, the Montgomery test applies to cases before that date.

So you could claim for clinical negligence and lack of informed consent even if you were injured before then – provided that your case falls within the time limit. You’ll find more information about the time limit (and who is exempt) in the last section of this blog post.

Consent: Other Considerations…

Crucially, had you been properly advised then:
•    would you have acted differently?
•    would you have suffered less injury?

Also, there may be other factors that have an impact.
•    Are you aged under 18? (Parental consent would be needed.)
•    Was it an emergency? (The doctors may not have had time to get consent.)
•    What if the doctors found something else that needed treating while you were undergoing your procedure? (They couldn’t just leave it.)

But remember: you may have given your consent, you may have signed a form – but were you properly informed?

Find Out If You Could Claim

Book a free initial chat with Coles Miller Partner David Simpson, Head of our Clinical Negligence Department – complete the email form on this page or phone 01202 355695.